SHRI TEJENDER PAL SINGH SAHNI, KOTA V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL, KOTA

MA 21/JPR/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3675 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 03-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Source of fund; Set aside
• Section: 68; 153A; 274

Judgement Text

1 MA No.21/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL-KOTA vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oaJh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Miscellaneous Application No.21/JP/2020 (Arising out of vk;dj vihy la-@ITA No. 1105/JP/2019) fu/kZkj.k o"kZ@Assessment Year : 2016-17 Shri Tajender Pal Singh Sahni C/o C.M. Birla & Co. Chartered Accountant 1D, New Colony, Gumanpura, Kota cuke Vs. The DCIT Central Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFFPS 1351 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri C.M. Birla, CA jktLo dh vksj ls@Revenue by: Shri A.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 16/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 04 /07/2022 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM The assessee has filed a Miscellaneous Application u/s 254 (2) with a view to rectifying the mistake apparent on record in the ITAT order dated 23-12-2019 in ITA No. 1105/JP/2019 for the assessment year 2015-16. 2.1 During the course of hearing, the ld. AR of the assessee prayed for consideration of the Misc. Application mentioning therein as under. 2 MA No.21/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL-KOTA ‘’1. 1. Tejender Pal Singh Sahni, the Appellant, being aggrieved with the order of Hon'bleCIT(A) 2 Udaipur in ITA No.10224/2018-19 dated 28.06.2019 had preferred an appeal before Hon'ble ITAT, Jaipur Bench which was listed for hearing on 16.12.2019. 2. That GOA 1 & 2 in said appeal was as under: "1. That under the facts and circumstances of the case the learned CIT(A) erred in confirming addition of Rs.1000000/- us 69 ignoring the evidences filed before the learned 40 copies whereof were filed to Hon'ble CIT(A) also. Addition of Rs.1000000/- therefore needs deletion. 2. That as the investment is appearing in Balance Sheet of the appellant and therefore it being recorded in books of accounts therefore its source being fully explained it can not be taxed us 69. The Hon'ble CIT(A) therefore erred sustaining addition of Rs. 1000000 which needs deletion. 3. During appeal hearing appellant was represented by my counsel Shri CM Birla who had verbally argued the case before Hon'ble Bench and had also filed written submission. As appears from written submission also while arguing aforesaid ground my counsel's gist of submission was as under: (i) During search no question was asked by search team on Rampura Plot of Rs. 1250000/ (ii) That during post search proceedings in inquiry by Id. ADI as to details of immovable properties purchased during 2011 to date of search the appellant submitted to ld. ADI that he has purchase plot in Rampura Kota for Rs. 1250000/- (in A.Y. 2016-17- Rs. 100000/- in A.Y. 2017-18 Rs.250000/-). (iii) That in ROI filed w/s153A for Assessment Year 2016-17 advance for Plot in Rampura for Rs.1000000/- was shown in Balance Sheet. That as ROI for Assessment Year 2016-17 was appended to Capital Account & Balance Sheet (PB 6) source of investment were also shown. (iv) That during assessment proceedings Rampura Plot was explained vide letter dated 20.11.2018 also. 4. The learned AO ignoring our explanation that plot was appearing in Balance Sheet (PB 6) appended to return filed u/s 153A taxed it in our hands on the only reasoning that it's investment was not shown in Para 5 of letter dated 27.07.2016 filed before the ld ADI during post search proceedings. He held as under: "Un-accounted Investment in open Plot at Rampura, Kota: During the search action u/s 132 of the IT Act, incriminating documents pg no. 53 to 54 of exhibit-23 of party A-1 were seized which related to investment of Rs.12.50 lacs made in open Plot at Rampura, Kota as Rs.10 lacs during FY 2015-16 and Rs.2.50 lacs during FY 2016-17. During post search investigation a reply dated 16.08.2016 is submitted wherein at S. No.5 containing column "Details source of investment" wherein in sub point no.6 related to open plot at Rampura 16-17 & 17-18) details source of investment is kept Blank In the light of above fact and your submission, a sum of Rs 12.50 lacs is considered as un-accounted investment in open plot at Rampura, Kota. Hence, same were proposed to be added in total income of the assessee as un-accounted income of Rs. 10 lacs during FY 2015-16 and Rs.2.50 lacs during FY 2016-17 i.e. AY 2016-17 & 2017-18 respectively. The Assessee/AR has filed that these two plots are already shown by him in Balance Sheet with ROI wherein investment is shown. He further submitted that date limit of filing ROI u/s 139 for assessment year 2016-17 had not expired. 3 MA No.21/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL-KOTA I have considered the submission of the assessee but not found convincing. Assessee has not filed proper source of investment during post search proceedings. The explanation filed during assessment proceedings is an afterthought. The cash flow submitted by the assessee is hereby rejected and the income of Rs. 10,00,000/- is added in total income of the assessee w's 69 of the Act. The income will be taxed u/s 115BBE of the Act. Assessee is liable for penalty proceedings w's 271AAB (1)(c) of the Act for concealment of undisclosed income of Rs.10,00,000/ Accordingly, penalty proceedings u/s 271AAB (1)(c) of the IT Act, 1961 is hereby initiated for undisclosed income by issue of notice u/s 274 r.w.s. 271AAB(1)(c) of the Act." 5. Additions were sustained by Hon'ble CIT(A) also holding as under: "The only submission of the assessee is that investment of Rs. 10,00,000/- is appearing in the statement of affairs as on 31.03.2016, filed during the proceedings w/s 1534, and is therefore not an unexplained investment. "Firstly, the statement of affairs at the yearend does not establish availability of funds on the date of the investment of Rs. 10,00,000/-. Secondly, bare statement of facts, without any supporting documents, by itself does not constitute evidence of source of investment. Therefore it is held that the assessee has failed to explain the source of the investment of Rs. 10,00,000/- .Accordingly, the addition of Rs. 10,00,000/-, made by the AO w/s 69, is hereby confirmed, income of Rs. 10,00,000/- to be taxed u/s 115BBE 6. Being aggrieved I was before your Honour. My counsel vide Para 9, 10 & 11 had submitted before your honour as under: "9. There is no denial to these facts: 9.1(1). That investment of Rs. 10.00 Lacs in AY 2016-17 was shown in letter addressed to ld ADI,however it's source of investment was not shown in aforesaid letter. (ii) That investment is reflecting in BALANCE SHEET (PB 6) appended to ROI filed u/s 1534 for AY 2016-17 and also BOOKS OF ACCOUNTS presented before the ld. AO during Assessment Proceedings 9.2- The Id. AO had made addition w/s 69. Section 69 reads as under: Section 69- Unexplained Investment: Where in the financial year immediately preceding the assessment year the assessee has made investment which are not recorded in the books of account, if any maintained by him for any source of income, and the assessee offers no explanation about the nature and source of investment or the explanation offered by him is not, in the opinion of the 96[Assessing] Officer, satisfactory, the value of the investment may be deemed to be the income of the assessee of such financial year" 9.3- As investment is reflecting in BALANCE SHEET appended to ROI filed u/s 153A for AY 2016-17 which is based on BOOKS OF ACCOUNTS we submit additions u's 69 is uncalled for and it needs deletion. Reliance in this regard is made on: 10. We further submit that based on post search inquiries, ignoring books of accounts and Balance Sheet appended to ROL, additions of the nature are uncalled for. 11-It is therefore prayed that addition of Rs. 10.00 Lacs be deleted. 6. Your Honour following ratio of decision in ITA No. 1104/JP/2019 for Assessment Year 2014-15 decided the appeal vide Para 9 as under: 4 MA No.21/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL-KOTA "The facts and circumstances are identical to the appeal for the assessment year 2014-15 except the quantum of addition on account of unexplained investment. The assessee has explained the source of investment as statement of affairs and gift of Rs. 9,50,000/- from his brother. Accordingly, in view of our finding for the assessment year 2014-15, the issue is set aside to the record of the AO for verification and examination of the claim of the assessee regarding gift of Rs. 9,50,000/- from the brother of the assessee." 7. Your honour has made order of set aside to the ld. AO on these reasonings: (i). In statement of affairs assessee has shown gift of Rs.950000/- from brother. In support he has filed the gift deed. The said gift is between the family members and cannot be verified independently. (ii). Source of fund s gift which has not been verified by the authorities below which needsverification and examination by the AO. 8. We that gift of Rs.950000/- is appearing in the Capital Account (PB 6) appended with ROI for A.Y. 2016-17. Capital Account is verified and examined during assessment proceedings. Had Id. AO not satisfied as to gift it was a case of addition u/s 68 but not u/s 69 because plot was shown in Books of Accounts and Balance Sheet. 9. I may submit that it was a group search wherein my brother Surendra Pal Singh Sahni PAN No.:AFFPS0776M from whom gift is received is also a person who was searched. Gift of Rs.950000/- is reflecting in his Books of Accounts and Capital Account appended with ROI for Assessment Year 2016-17. He was also assessed to tax u/s 153A in same period. 10. We pray that your Honour's order of set aside the order to the Id. AO will again make it costly to poor assessee and will deprive him from justice for long period. We therefore request your. honour to please consider our application, delete the addition made u/s 69 and save the assessee from further cost of time and money.’’ The ld. AR appearing on behalf of the assessee also submitted that when the details are already available on record then setting aside the order by ITAT Bench will deprive of the assessee from justice. 2.2 On the other hand, the ld. DR objected to the Miscellaneous Application of the assessee and submitted that the assessee wants to get ITAT order reviewed by filing the Miscellaneous Application and ld. AR of the assessee by filing a self serving document cannot take a plea that details were already available on record but in fact the same is required to be verified by the AO. 5 MA No.21/JP/2020 TAJENDER PAL SINGH SAHNI VS DCIT, CENTRAL-KOTA 2.3 We have heard the rival contentions, perused the written submission of the assessee as well as other materials available on record. We find from the records that the Tribunal has passed the reasoned order by taking into consideration the facts and submissions raised by both the parties during the course of hearing. Hence, we find that order passed by the ITAT does not suffer any infirmity in assessee's case. In this view of the matter, Miscellaneous Application filed by the assessee is dismissed. 3.0 In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open Court on 04 -07-2022 Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 04/07/2022 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Tajender Pal Singh Sahni, Kota. 2. izR;FkhZ@ The Respondent- The DCIT, Central, Kota . 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 21/JP/2020) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar